The case, Kickabout Productions Ltd and HMRC, [2019] UKFTT 415 TC07230, was brought by Hawkbee's personal services company, Kickabout Productions Ltd (KPL), against a demand for PAYE and a notice of decision for Class 1 National Insurance contributions (NICs) issued by HMRC for the period 2012 to 2015 and amounting to some £143,000 in total.

The FTT considered two issues. The first was what would be the terms of the hypothetical contract between Hawksbee and Talksport if the services had been provided directly, while the second was whether that contract be a contract for employment or a contract for services.

The tribunal looked at two contracts and examined a number of arguments around mutuality of obligation, the exercise of control by the broadcast employer, and the general nature of the contract agreed between KPL and Talksport.

In evidence, Hawksbee said he signed contracts for two-year periods via KPL. While he was successful in renegotiating successive renewals of the contract, there was never any guarantee or certainty of renewal.

Hawksbee had the freedom to decide on the format and content of each show, and, subject to availability, the guests for each show, subject to four constraints. These were the need to comply with OFOM guidelines, the requirement to run adverts and sponsor promotions, the need for some news content, and the need to run travel bulletins twice an hour

The tribunal heard that while a producer might alert Hawksbee when an ad break is due, control over what is said and when rests very much with him, while  if the producer identifies a breaking news story he will alert Hawksbee, but if Hawksbee does not judge the story to be relevant he will not announce it.

Regarding Hawksbee’s actual activities outside the show itself, when Talksport hosted drinks receptions for potential clients, focussed around major sporting events, while Hawksbee attended some such events he missed many others due to other commitments including work engagements.

Hawksbee’s evidence, which was not challenged by HMRC, was that apart from such events Talksport did not at any stage (in the 18 years before and during the periods under appeal) require him to do anything for the company apart from the show. He did not even contribute to the Talksport Twitter account.

The intermediaries legislation applied to both contracts. In each tax year under appeal, KPL agreed to provide the services of Hawksbee to present the programme for a minimum of certain identified days (most Mondays to Fridays) and certain times (1 pm to 4 pm). The provision of services by Hawksbee was consistent, regular and predictable.

However, the tribunal found that Talksport did not exercise sufficient control over Hawksbee to make it his employer. He was not controlled in the preparation and research of the show; he decided its content and shape he could arrive at the studios whenever he chose before the show was due to go on air; the pre-show meeting was minimal and confirmed choices made by Hawksbee; he did not attend any post-show meeting, and he was not subject to appraisals. When the show was on air, any control by Talksport was limited and was not indicative of employer/employee control.

Hawksbee was not ‘part and parcel’ of Talksport. He was not invited to and did not attend staff meetings; he had no line manager; he was not subject to appraisals; he did not attend staff events and he did not integrate into Talksport’s wider organisation.

The FTT said that the control in this case could be contrasted with the findings in a previous case concerning the BBC’s control over Christa Ackroyd. In that case, the FTT found that, although both parties expected that Ackroyd would be required to present the Look North show, the BBC’s rights under the hypothetical contract to control what Ackroyd could be required to do were much broader.  While HMRC won that case at tribunal, it lost a subsequent appeal involving ‘Loose Women’ TV presenter Lorraine Kelly.

In this instance, the tribunal found in favour of Hawksbee on the grounds there was no obligation on Talksport to provide work, and the controlled services were largely restricted to delivering the show. He had no equivalent rights to holiday, sick pay, pensions or paternity leave and no provisions regarding medicals, training.

Talksport’s payment obligation was restricted to a fee for each show delivered, with no retainer or bonus while the presenter, who was synonymous with the show, was not part of the Talksport organisation.

The tribunal said: ‘Looking at the picture as a whole, we conclude that the relationship in this case was not one of employment but rather was a contract for services.’

Kickabout Productions Ltd and HMRC, [2019] UKFTT 415 TC07230

By Pat Sweet